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December 12, 2006
What To Do If Board Meets In Secret
An email I received recently claims that the Board of the Association meets "in secret" in one of the Board Members homes and the sender wanted to know if this was illegal and what he could do about it. That is not really an uncommon complaint and it may or may not be a problem. If the Board holds all of the meetings in a Board Member's home, that is not necessarily a problem, especially when there is no clubhouse. However, if all of the meetings are in a Board Member's home, and homeowners are not notified of any of the meeting dates and times, or allowed to come, then there is a problem. There are only a few subjects that entitle a Board to meet "in secret". In California, those subjects are basically related to discussions of threats of or pending lawsuits, with or without legal counsel present, contract negotiations, personnel matters, and disciplinary matters. These subjects are considered appropriate for "executive sessions" (which are essentially the same as a "secret" meeting when homeowners are not invited to attend). In addition, holding an executive with the association counsel to discuss attorney-client privileged matters of a legal nature are appropriate. All other board meetings must me disclosed, and owners have a right to at least 4 days' notice, either by mail, posting in the common area, newsletter, provisions in bylaws, etc.
So what happens if a Board is not complying with these requirements? The requirements are found in Civil Code Section 1363.05 which is part of the Davis Stirling Common Interest Development Open Meetings Act (which is similar but not exactly the same) to "the Brown Act" which relates to public meetings. If a Board violates the provisions of Civil Code Section 1363.05, then 1363.09 provides a remedy to owners. It says, in pertinent part:
"1363.09. REMEDIES. (Operative July 1, 2006.)
(a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by an association of which he or she is a member, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues. Upon a finding that the election procedures of this article, or the adoption of and adherence to rules provided by Article 4 (commencing with Section 1357.100) of Chapter 2, were not followed, a court may void any results of the election.
(b) A member who prevails in a civil action to enforce his or her rights pursuant to this article shall be entitled to reasonable attorney's fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that each identical violation shall be subject to only one penalty if the violation affects each member of the association equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation.
(c) A cause of action under Section 1363.03 with respect to access to association resources by a candidate or member advocating a point of view, the receipt of a ballot by a member, or the counting, tabulation, or reporting of, or access to, ballots for inspection and review after tabulation may be brought in small claims court if the amount of the demand does not exceed the jurisdiction of that court."
As you can see, there are some remedies that could apply to a violation of the meetings act and also the new elections laws. It's best to comply, of course. If an Board has extenuating circumstances that lead it to believe it can have closed meetings, it should seek the opinion of a knowledgeable attorney. There are some circumstances that would suggest seeking court approval of alternative meeting structures to deal with disruptions or other potentially serious problems.
Posted by Beth Grimm at December 12, 2006 10:58 PM